0 keystone and they will fight it. outside voorenvironmental groupe also saying they have 50,000 people lined up, who have signed up and said they are willing to be arrested, protesting against keystone. also today, the secretary of state, john kerry, is on a surprise trip to afghanistan. he landed just hours after the u.s. handed over its prison, its main prison in that country, to the afghan government. that may not sound like the biggest deal in the world, but that prison was one of the most important sticking points to how and when we would finally end our war there and extricate ourselves from that country, so that is a really important political development. also in the face of continuing, withering, bipartisan criticism of the performance of the veteran's administration, particularly toward iraq and afghanistan veterans, we learned today that the chief of staff of that agency is leaving. announcing today that he will retire. we've also got new details ahead this hour in the murder of the prison's chiefs in colorado. also, the nation of cyprus has accepted its bailout, alleviating immediate fears of another european financial meltdown, but presumably, we'll just start fearing another one some time soon. also, i have to tell you that gonzaga last on saturday night, so my ncaa bracket is over and done with. and most amazingly, smu announced today that the george w. bush presidential library is almost ready to open. they have set a date. the george w. bush presidential library will open to the general public for the first time on the ten-year anniversary of the mission accomplished speech, in which president bush announced that the united states had prevailed and major combat operations in iraq were over. that was six weeks into a war that would go on for 8 1/2 more years after that. on the ten-year anniversary of mission accomplished, they're going to open the george w. bush presidential library, which is actually perfect. honestly, any had to pick a date, that would be the date i would pick. what could be more fitting? but we begin our show tonight with the historic civil rights cases that are going to be argued starting tomorrow in the united states supreme court. we now know what the ticktock will be like as far as how this gets argued. it starts at 10:00 a.m. eastern and the oral arguments in the case will last an hour. as always, there are no cameras in the courtroom. no still cameras and no video cameras. and there will be no live audio feed from the courtroom either. but we do know that the court plans to release the audio recording of the arguments not too long after they finish up tomorrow. so by this time tomorrow, right here on tomorrow night's show, we probably will have the audio tape of those arguments to play for you. the pro gay rights side of the case, the case that's arguing for striking down california's ban on gay marriage, that will be argued in part by this man, the nation's solicitor general, donnell furly. the obama administration has taken the pro gay rights side of this case, so it will be our nation's solicitor general making part of that side's oral argument. the other part of the pro gay rights oral argument will be made by this man, the former solicitor general from the last presidency, ted olson, theodore olson and probably the most recognizable conservative legal figure in the country who is not himself a supreme court justice. ted olson was george w. bush's solicitor general. me played the role of joe biden to prep paul ryan for the vice presidential debate this past presidential election. ted olson the bush versus gore debate. it's ted olson and boyce who he beat are both on the pro gay rights side of this case tomorrow. but it will be ted olson, the conservative one, who will actually standed up tomorrow in court and make the case, along side the solicitor general. it's kind of the definition of heavy hitters, right, when it comes to supreme court oral arguments? the solicitor general and the last solicitor general from the other side of the aisle. wow. now, that's the pro gay rights side. the anti-gay rights side, the other side of the case tomorrow, will also be argued in tomorrow's arguments the lawyer for the anti-gay side will get equal full-time and the lawyer on that side of the case is a man named -- chuck cooper. chuck cooper. chuck cooper. to the google, right? on the first page of google search results for chuck cooper, you will not find what you are looking for. the first results is this very nice website, i think we've got it, yes, for the broadway actor named chuck cooper. he is very talented, very famous on broadway. he is not the chuck cooper making the anti-gay rights argument at the supreme court tomorrow. other first page results for chuck cooper will teach you about the first african-american player to be ever drafted by the nba. an amazing history, an amazing biography. there is a foundation in his name, but he is not the chuck cooper making the anti-gay rights argument a to the supreme court tomorrow. flip over to the second page of google search results, you will find chuck cooper the nature photographer from tennessee. he is also not the chuck cooper making the anti-gay rights argument, neither is the chuck cooper who is an insurance agent in mississippi, neither the chuck cooper who is a real estate agent in california, neither is the chuck cooper who is the wiring and cable manufacturer sales representative either. in order to get anywhere near anything useful about this chuck cooper who is making the anti-gay rights argument at the supreme court tomorrow, you must call upon the wikipedia disambiguation page, where you'll be able to narrow it down to, finally, that must be him, chuck cooper, former supreme court clerk, now a lawyer, most known for his bit part in the iran contra scandal. he's the one who testified that ronald reagan's national security adviser and a man named ronald north had all conspired to lie dong in the iran contra scandal. he also testified that oliver north had lied a bunch of other times and might lie under oath when called the next time. he was an assistant attorney general in the reagan justice department. and that, honestly, is sort of where he is indexed in our modern american history books. nothing against mr. cooper here. he is a very accomplished lawyer now. he's an accomplished litigator, arguing before the supreme court the no chopped liver. but this imbalance is kind of a microcosm for what's happening on this issue right now in our country. the pro-gay rights side, i mean, for one thing, they have essentially totally captured the democratic party. the president, the vice president, the other most prom meant democrat in the country who is not the president or vice president, hillary clinton, they are all on record emphatically for equal rights for same-sex couples. a lot of democrats had that position already. but all of the action now on the democratic side weis among democrats who were not yet on board. today, two more centrist to conservative democratic senators came out in favor of same-sex marriage. senator claire mccaskill of missouri and mark warner of virginia. there are some relatively prominent democrats who are still trying the dodge the issue. hi, we can see you. but, honestly, if you talk to anybody who's taking these issues seriously, it is now officially inconceivable that the democratic party would say, nominate a presidential candidate in 2016 who doesn't believe in equal rights for gay people. it is a settled matter in the democratic party. so the pro-gay rights side has pretty much captured the democratic party. it's just a matter of sweeping up the last few and finding out if anybody's going to try to be the anti-gay maverick on this issue while still staying in politics and still staying in the party. my bet is no. not even you, mary landrieu. also, on the pro gay rights side, along with almost the entire democratic party, is a chunk of the republican party. the republican official's brief for the supreme court ended up with 131 names on it. everybody from paul wolfowitz, my buddy, to jon huntsman, to clint eastwood, to the romney for president campaign manager, to the secretary of the new in republican politics right now, republicans are sort of getting to the point where they don't want to change their policy position on these matters, they just don't want to be known for what their policy position is on this matter. they just want people to stop noticing it. so even though the party platform for last year's election and the republican party chairman, reince priebus, and the speaker of the house, john boehner, and the supposedly modern new republicans like marco rubio, are all on the record now as still now rigidly anti-gay rights and not planning on changing, even as pretty much everybody active and high-level republican politics who is not named rob portman continues to stand firm against the threat of gay people having equal citizenship rights, at the same time, they mostly just don't want to talk about it. so you have this sort of incoherent thing going on, on the republican side or at least the anti-gay rights side of this question. we're at the point where the face of crusading anti-gay rights is an obscure lawyer from the iran contra scandal named chuck cooper who's not to be confused with the more well-known actor of the same name. to define somebody to be the face of the de facto position of the republican party, you've got to go to this guy. you've got to drag out old gary bauer like fox news channel did yesterday. you've got to drag out gary bauer to argue that people are not really in favor of marriage equality, the polls are skewed. gary bauer's argument on fox news sunday was that people, americans broadly really do secretly hate gay people, but they're lying to the pollsters about it. the same way they told the pollsters they would vote for barack obama and then on election day, they all showed their true unskewed colors and voted for governor romney. really, gary bauer? really, you're the best they've got? this is the de facto position of the republican party, but republicans don't want to argue for it. so you get gary bauer, you get old tony perkins there on cbs, making the same version of the gary bauer argument. the polls are skewed! you get rick santorum out there still, now running the issue like a racket in a way that would make newt gingrich proud. rick santorum is now sending out direct mail appeals, saying that if you send him $100, he will urge the supreme court to rule against gay marriage. because, presumably, rick santorum can't do that urging without your $100. he's running it like a racket. but this is what it's come to. it's a mess on the other side of this argument, from where david boyce and ted olson and the scl solicitor general of the united states will be arguing tomorrow. nobodies what legal direction the justices will take this in. and you can double that for the defense of marriage cases that will be argued the following day. we don't know yet how all of this will be move legally. but the politics surrounding this legal matter are increasingly weighty and predictable on the left. and on the right, they are increasingly incoherent and low-rent and even occasionally pathet pathetic. does that imbalance in the politics here, does the fact that the spokesperson on the right on this issue is maybe gary bauer and the spokesperson on the left of this issue is the leading legal likes of both the republican and democratic party. does that imbalance, politically, affect expectations for how the court is going to hear and rule on this case? and should it? joining us now is kengy osheena, the chief justice of constitution until law at nyu law school. he'll be in the courtroom tomorrow to hear the legal arguments in the prop 8 case. professor osheena, thanks very much for being here tonight. >> it's great to be here, rachel. >> first of all, can you sum upper fus up for us, what is th basic question the court will be deciding tomorrow? >> there are two claims being made, constitutionally. one is the freedom to marry claim, which is under the due process clause of the 14th amendment. the other is an equal protection claim, which says there has to be equal treatment, regardless of what entitlement is on the table for same-sex couples as for opposite-sex couples. so the range of options that we have with those claims are, usually people frame it as 0 to 50. it's either no states or all 50 states. but there are actually three options in the middle. and i think that the court is most likely to do one of those threes. there are two ways to get to one state, a just california solution, we can talk about either of those. and there's an eight-state solution that says, there are currently eight states, will be nine when colorado does civil unions may 1st, but eight states that have everything but marriage. the argument there is, if you are giving all the rights and benefits and burdens of marriage to individuals but withholding only the word marriage, that's essentially a branding issue. it's a concern you'll tarnish the brand if you let gay people into the constitution. and that tarnishment claim is really is second class citizenship claim, so they could flip those and double the number of jurisdictions that have same-sex marriage. >> that would mean the states where same-sex marriage exists already would continue to have that, but it would not force other states that don't have those laws to respect them. >> correct. so what it would say is you have all of the states that have everything but marriage statutes being pushed over into marriage. because the argument is, that's irrational to give all the rights and benefits and burdens of marriage, but to withhold only the word "marriage." so, then, that would basically end civil unions, because i think states would get very leery about going too far down that path, lest they be pushed over the edge. but i think that civil unions have already seen the -- we've seen the dusk of civil unions already. i think gay people want full equality and they're not willing to settle for the middle of the bus as opposed to the front of the bus. >> is it possible that the ruling on this case tomorrow could hurt gay rights in the sense that it could roll back existing rights or make it harder to achieve forward progress that's already in motion? >> well, it could, in a sense of saying, we could get something like a byers versus hardwick case, a 1996 claim, that said there was no constitutional right to have privacy against laws that criminalize sodomy. and it took 17 years to get rid of that case. it could present a negative precedent, that says there's no constitutional right to same-sex marriage, and that could take a long time to get rid of. but even that kind of a decision would not preclude us going from state to state and flipping states one by one, under either a state constitutional provisions or through the legislature. >> so i know you're planning on going to oral arguments tomorrow. what do you expect to know after the oral arguments? what are you watching for? what should we be looking for when we release the tape, in terms of either tipping their hand about which way they're going to go, or what might be important in their ruling? >> one important thing to look for is the off-ramp, which is the big kind of standing issue, which is, are the right people bringing this case? so one of the ways in which the supreme court could kick this case, without having to reach the merits of the case, is to say, this case may be meritorious or not, but the wrong parties appealed this. it should have been the governor of california or the california attorney general, since they declined to appeal. the proponents of prop 8 are the ones that are the improper pa y parties that are going to kick it and it guess back down to the district court and that could kick california and california only. listen for that procedural issue. another issue is how the court wrestles with this issue of political powerlessness you laid out earlier. on the one hand, you have 41 states that currently have restrictions on same-sex marriage, that do not allow same-sex marriage. on the other hand, you have polls like that abc/post poll that say 84% of americans are for same-sex marriage now. so what do we do with this? the other side of this, the proponents of prop 8 are going to argue that gays are so politically powerful, they don't need the special judicial solicitude that is offered by the court under this heightened scrutiny standard that plaintiffs are seeking. and the way to resolve this, i think, rachel swb , is to say, is a paradox of political power in the supreme court. you have to have an enormous amount of political power before the court will deem you to be politically powerless. so the truly political powerless individuals in our society are not going to be on anyone's radar, including the supreme court. so unless we had had this enormous gay rights movement over many, many decades, we would never be at the court would have the question teed up before it whether gays are politically powerless or not. >> this is fascinating, followed by the doma cases, which are just as complicated, but also as far reach welcome the following day. i have absolutely no idea what's going to happen. the fact that chief justice john robert's lesbian cousin will be sitting in the audience tomorrow, hearing oral arguments as well, it's like the personal mix in all the middle of it. this is going to be an amazing one to watch. kenji, thank you so much for being here. ken kenji yoshina is a constitutional law professor. we've got lots more coming up tonight, including news of national significance in both dakotas. and i swear i'm not making that up and there are two separate stories. plus, what looks like basically an answer to a mystery that we covered on the show last week involving the murder of a state official in colorado. we've got some answers there. lots to come. stay with us. 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